SB 59 Modifies provisions regarding judicial procedures
Sponsor: Keaveny
LR Number: 0491S.04T Fiscal Note: 0491-04T.ORG
Committee: Judiciary and Civil and Criminal Jurisprudence
Last Action: 7/11/2011 - Signed by Governor Journal Page:
Title: CCS HCS SB 59 Calendar Position:
Effective Date: August 28, 2011
House Handler: Diehl

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CCS/HCS/SB 59 - This act modifies provisions regarding judicial procedures.

CONTINGENCY FEE CONTRACTS

(Sections 34.376, 34.378, and 34.380)

This act prohibits the state and any of its agents from entering into a contingency fee contract with a private attorney, unless the Attorney General makes specific written findings. The Attorney General is required to request written proposals from private attorneys, unless the Attorney General makes a written determination that requesting proposals is not feasible. If the Attorney General requests proposals from private attorneys, the Attorney General is required to choose the lowest and best bid or request the office of administration establish an independent panel to evaluate the proposals and choose the lowest and best bid.

A private attorney who is representing the state on a contingency fee basis is required to maintain records about their expenses for at least four years after the contract terminates. The attorney general's office is required to respond to requests to make these records available to the public under the sunshine law.

The Attorney General is required to post certain information about the contingency fee arrangement on their website. The Attorney General is also required to submit an annual report regarding the use of contingency fee contracts.

These provisions are identical to provisions of SS#2/SCS/HCS/HB 111 (2011) and similar to SCS/SB 432 (2011) and HB 872 (2011).

POWER OF ATTORNEY

(Section 404.710)

The act updates references to the Uniform Anatomical Gift act to refer to the Revised Uniform Anatomical Gift Act and specifies that a power of attorney must include specific language to give a person with power of attorney the authority to decide how to dispose of another person's body.

This provision is similar to SB 60 (2011).

THE UNIFORM TRUST CODE

Currently, a person who represents another person may give their consent to actions with regard to trusts, unless the person represented objects to being represented. This act makes the consent of the representative binding on certain types of people, regardless of whether the person objects to being represented. (Section 456.3-301)

The act allows certain trustees to move trust assets from the original trust to another trust. By moving the trust assets to a new trust, the trust can be modified without a court's approval. This second trust may only have beneficiaries that were eligible to receive property under the first trust, or may in the future receive property from the first trust. Generally, a trustee may not move the trust assets to the second trust if the trustee is a beneficiary of the first trust, or if the trustee of the first trust can be replaced by a beneficiary with a person who is related to that beneficiary. Generally, a trustee is prohibited from moving the trust assets to a second trust if it would increase the distributions to the trustee or to a beneficiary who could replace the trustee, or if it would remove restrictions that were in the document creating the first trust. The act also restricts how the second trust can operate for certain types of property and trusts, based on federal tax law. A provision in the original trust document that prohibits amendment or revocation of the trust will not prevent the trustee from moving the trust assets to a new trust.

The trustee is required to notify people who might get property from the second trust of the decision to distribute the property to the second trust.

The act specifies that a trustee does not have a duty to move trust assets to a second trust. (Section 456.4-419)

The act specifies that creditors of a person who creates a trust may not reach the person's interest in that trust, regardless of whether the person retains the ability to dispose of their interest through a testamentary power of appointment. (Section 456.5-505)

The act also prohibits creditors of certain beneficiaries of a trust from reaching certain property of the trust to satisfy the beneficiary's debts. (Section 456.5-508)

This act increases from 60 to 120 days the amount of time a trustee has to notify the beneficiaries of a trust of the existence of the trust, the trustee's contact information, and the beneficiaries' right to a copy of the trust document and a report from the trustee. (Section 456.8-813)

UNIFORM PRINCIPAL AND INCOME ACT

This act modifies how the unitrust amount for trusts is calculated. The act also requires that the unitrust amount be paid from certain sources in a particular order. (Section 469.411)

This act requires trustees of trusts that qualify for a marital deduction under federal tax law to take certain actions toward retirement plans that make payments to the trust, when requested to do so by the surviving spouse.(Section 469.437).

The act also modifies the requirements for how a trustee is to pay taxes from trust income and principal and allows a trustee to adjust income receipts to the extent the trust's taxes are reduced because the trust receives a deduction for payments made to a beneficiary. (Section 469.459)

These provisions are similar to SB 60 (2011).

GUARDIANSHIP

(Sections 475.060, 475.061, 475.501, 475.502, 475.503, 475.504, 475.505, 475.506, 475.521, 475.522, 475.523, 475.524, 475.525, 475.526, 475.527, 475.528, 475.529, 475.531, 475.532, 475.541, 475.542, 475.543, 475.544, 475.551, 475.552, 475.555)

These provisions modify what information is required in a petition for guardianship for a minor or an incapacitated person and adopt the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA).

A petition for guardianship of a minor will be required to state the location and value of any real property owned by the minor outside of Missouri and the name and address of the trustees of any trust of which the minor is a qualified beneficiary and the purpose of the trust, in addition to the information the petition was previously required to state.

In addition to the information currently required to be included in a petition for guardianship of an alleged incapacitated person, the petition will also be required to state the three most recent addresses at which the incapacitated person lived in the three years before the filing of the petition, the location and value of any real property owned by the incapacitated person outside of Missouri, the name and address of the person's closest known relatives, the name of any adults living with the person, in some situations the name and address of the person's siblings and of their siblings' children, and the name and address of any agent of the person and of any trustee of any trust that the person is a beneficiary of, as well as the purpose of the power of attorney and the purpose of the trust.

The UAGPPJA deals with issues that arise when several states are involved with an adult who lacks the ability to care for their own needs or property. The UAGPPJA includes provisions regarding communication between courts in different states, requests for assistance from a court to a court of another state, and taking testimony in other states. The UAGPPJA allows a Missouri court to treat foreign countries as other states for the purposes of the provisions allowing communication among courts, determining jurisdiction, and transferring a guardianship or conservatorship.

The UAGPPJA establishes procedures for determining which state has jurisdiction over guardianship and conservator proceedings for an incapacitated adult. These procedures establish three levels of priority for a court to follow in deciding whether it has jurisdiction; the adult's home state, followed by states where the adult has significant connections, and then other states. Regardless of the level of priority, the UAGPPJA allows a court in the state where the person is present to appoint a guardian in an emergency, and a court in the state where the person has property has jurisdiction to issue orders regarding the property. If a court determines that it acquired jurisdiction based on unjustifiable conduct, the act allows the court to remedy the situation and assess fees and expenses against the person who engaged in the unjustifiable conduct.

The UAGPPJA also specifies a procedure for transferring a guardianship or conservatorship from one state to another state. This procedure requires the court in the state transferring the guardianship or conservatorship to issue a provisional order transferring the case after making certain findings. The guardian or conservator is required to petition the state that would accept the case and, after holding a hearing, that court is required to grant the transfer, unless someone objects to the transfer and establishes that the transfer would not be in the interest of the incapacitated person, or the guardian or conservator is not eligible to be appointed a guardian or conservator in that state.

The UAGPPJA also creates a procedure for registering orders in Missouri from other states that appointed a guardian or a conservator to manage an incapacitated adult's property. After registration of the guardianship or protective order in Missouri, the guardian or conservator may exercise all the powers authorized in the original states's order, except for powers that are illegal in Missouri.

The provisions of the act regarding transferring guardianship or conservatorship proceedings from one state to another state and that deal with enforcement of guardianship and protective orders in other states apply to proceedings begun before August 28, 2011.

These provisions are identical to provisions of HCS/SCS/SB 213 (2011)and SS#2/SCS/HCS/HB 111 (2011)and similar to HB 130 (2011), and HCS/HB 253 (2011).

PUBLIC ADMINISTRATOR

(Section 475.115)

This act allows a public administrator to request the court to transfer any guardianship or conservatorship case to another county. If the other county meets the venue requirements and the public administrator of the other county consents to the transfer, the court is required to transfer the case. The court with jurisdiction over the other county is required to appoint the public administrator of that county as the person's new guardian or conservator without holding a hearing.

The public administrator is required to file a final settlement of their conservatorship within thirty days of the court transferring the case. This final settlement will be filed in the court with jurisdiction over the original conservatorship and forwarded to the receiving county upon audit and approval.

This provision is similar to HCS/SCS/SB 57 (2011), HB 88 (2011) and HB 1676 (2010).

SMALL CLAIMS COURT

(Sections 482.305 and 482.315)

This provision increases the amount in controversy in a case for a judge to have jurisdiction over a small claims court case from three thousand dollars to five thousand dollars.

This provision is similar to HB 386 (2011).

TRANSFERS OF TENANCY BY THE ENTIRETIES PROPERTY TO TRUSTS

(Section 1)

This provision specifies what happens to a certain kind of property, known as tenancy by the entireties property, when it is transferred to a particular kind of trust created by a husband and a wife. These trusts, known as qualified spousal trusts, include trusts that hold the property in one trust and trusts that hold the property in two separate shares. If the property is transferred to the trustee of a qualified spousal trust, the property will have the same immunity from the separate creditors of the husband and wife that would have existed if the husband and wife had not transferred the property to the trust, as long as certain conditions are met. The rights of creditors to any property that is not held by the husband and wife as tenants by the entirety shall not be affected by the transfer of that property to the qualified spousal trust. When the husband or wife die, the property in the trust shall be distributed as directed by the terms of the trust, which may include having the property pass to an irrevocable trust for the benefit of the surviving spouse. The provisions of this section apply to trusts that were created before or after August 28, 2011.

EMILY KALMER